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  • Craig Trainor

The Tragedy of Acquitted Conduct Sentencing

Hands behind prison bars

Last year, a colleague and I tried a Racketeer Influenced and Corrupt Organizations Act (“RICO”) case in Brooklyn’s United States District Court for the Eastern District of New York. Given the avalanche of cooperator testimony and our client’s prior criminal convictions that constituted RICO predicate acts, the jury returned a verdict of guilty as to the racketeering and racketeering conspiracy counts in the indictment. This was not unexpected. We did, however, garner two victories.

First, we subsequently convinced the district court judge to sentence our client to three years of imprisonment, a dramatic downward departure from his sentencing guidelines range and the government’s recommendation of 20-years in federal prison. Second, our client’s co-defendant, who was also convicted of the racketeering and racketeering conspiracy counts, was acquitted of murder in aid of racketeering and related counts against him, sparing him a life sentence.

Despite the co-defendant’s acquittal on the murder charge by a jury of his peers, the government advocated for a sentence of 40-years in federal prison. The prosecutors based this recommendation, in large part, upon the murder charge for which this defendant was found not guilty. How could this be?

Despite a revolution in our federal sentencing jurisprudence over the last two decades – largely attributed to the intellectual prowess and originalism of the late Justice Antonin Scalia – that restored the privileged status of a criminal defendant’s right to trial by jury, current federal case law still permits a district court “to find facts relevant to sentencing by a preponderance of the evidence,” and it “may also continue to take into account acquitted conduct when sentencing by a preponderance of the evidence.” United States v. Vaughn, 430 F.3d 518, 521-27 (2d Cir. 2005) (Sotomayor, J.). While this judicial license violates common sense notions of fairness, the Supreme Court has said that it neither violates the Due Process Clause nor the Fifth Amendment’s Double Jeopardy Clause.

In United States v. Watts, 519 U.S. 148, 155 (1997), the High Court reasoned that the “significance of the different standards of proof that govern at trial and sentencing” demonstrates that an “‘acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.’” Admittedly, there is truth to this assertion. Its technocratic logic, though, ignores more meaningful considerations central to the Sixth Amendment’s right to trial by jury.

Justice Brett Kavanaugh wrote, while a judge on the D.C. Circuit, that: “Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.” United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (per curiam) (Kavanaugh, J., concurring in denial of rehearing en banc). With some luck, Justice Kavanaugh and his brethren will elect to correct this constitutional injustice.

Emanating from another Eastern District of New York prosecution, an octogenarian Mafioso, Vincent Asaro, who may or may not have been involved with the famous Lufthansa heist so epically depicted in Martin Scorsese’s classic Goodfellas, has filed a cert petition with the Supreme Court, requesting it resolve: “Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury.”

The Court should grant cert because, as Asaro’s petition highlights, “a sentencing court’s consideration of conduct underlying a charge for which a jury has acquitted the defendant” has “long troubled federal jurists” and “circumvent[s] the jury’s constitutionally protected role as a ‘liberty-protecting bulwark.’”

The continued vitality of this practice, moreover, is doctrinally inconsistent with the Court’s Apprendi jurisprudence, which stands for the broad proposition that the Sixth Amendment’s right to jury trial requires “that ‘the truth of every accusation, whether proffered in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours.” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 4 W. Blackstone, Commentaries on the Law of England, 343 (1769)).

Specifically, Apprendi requires that any fact, other than the fact of a prior conviction, that “increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

In line with the Apprendi rule, the Court has invalidated various sentencing schemes “that fail[ed] to respect the jury’s supervisory function” by increasing a criminal defendant’s sentence with judicial fact-finding. United States v. Haymond, 39 S. Ct. 2369, 2377 (2019) (plurality opinion). See, e.g., United States v. Booker, 543 U.S. 220 (2005) (federal sentencing guidelines violated the Sixth Amendment where judicial fact-finding used to justify sentence increase).

Taken together, the egregious intellectual inconsistency that jurists must abide by accepting acquitted conduct in their sentencing decisions coupled with the constitutional harm suffered by criminal defendants and the damage done to the Sixth Amendment’s jury trial guarantee clamors for Supreme Court intervention. If the Court grants cert – always a big if – it would likely reaffirm the supremacy of the jury: “Just as the right to vote sought to preserve the people’s authority over their government’s executive and legislative functions, the right to a jury trial sought to preserve the people’s authority over its judicial functions.” Haymond, 139 S. Ct. at 2375 (citation omitted).

The constitutional right to trial by jury serves as “an inestimable safeguard against the corrupt or overzealous prosecutor,” Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968), and “as a bulwark between the State and the accused at the trial for an alleged offense,” S. Union Col v. United States, 567 U.S. at 367 (citation and internal quotation marks omitted). Given the jury’s historic function in the service of American liberty, the Supreme Court should not continue to sanction the government’s “proverbial ‘second bite at the apple,’” where it prosecutes its case “[t]he first time before a jury; the second before a judge.” United States v. Canania, 532 F.3d 764, 776 (8th Cir. 2008) (Bright, J., concurring).

This is not what the Founding Fathers envisioned, and if it takes the largely unsympathetic plight of an aging New York City mobster to remedy this constitutional aberration, so be it.


Craig Trainor is a criminal-defense and civil-rights attorney in New York City. He previously served as a prosecutor and as a law clerk to a federal judge. His writing has appeared in National Review, the Weekly Standard, the Washington Examiner, City Journal, the Federalist, and the American Spectator. Twitter: @TrainorLaw.


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